President Obama has nominated more than 300 people for federal judgeships since he took office, and before this week none of them had been a Muslim.
That changed with his nomination Tuesday of Abid Riaz Qureshi, a Pakistan-born lawyer at the law firm Latham & Watkins in Washington, D.C., to the US District Court for the District of Columbia.
Experiential diversity used to be a hallmark of high courts, but Mr. Obama has made diversity in race, gender, and sexual orientation a priority in his nominations. While the approach has been commended by many, it has also raises the question of why such diversity is necessary at all.
Lady Justice, after all, wears a blindfold. A judge is only supposed to consider the merits of a case and the letter of the law in making a decision on a case, their life and career experience meaningless. Supreme Court nominees, for example, pledge fidelity to the US Constitution as their main guiding principle. [Editor's note: This sentence was changed to reflect that all justices take a constitutional oath.]
In that context, does it matter that Obama has nominated the first ever Muslim to a federal bench? Or that, according to Politico, 43 percent of his judges have been women, 29 percent have been nonwhite, and 11 have been openly gay?
Inevitably it does, legal experts say, not only because of what diverse judges bring to the bench but also because of the confidence that diversity engenders in the judiciary. Some experts are urging that diversity of experience, not just background, should also be considered.
“On one level, diversity shouldn’t matter because judges should judge with regard to the case in front of them and not with regard to the life experience they bring to the case,” says Steven Schwinn, a professor at the John Marshall Law School in Chicago. “On the other hand, I think we all recognize that judges bring their own experiences to the bench – and that we actually like that.”
Imprints of upbringing
He notes the example of Sonia Sotomayor’s tenure on the Supreme Court.
During her confirmation in 2009, Republican senators were wary of the value Obama had placed on her life experience – she is a Hispanic woman raised in the public housing projects of the South Bronx – and how it could potentially influence her decisionmaking.
“I will not vote for, and no senator should vote for, anyone who will not render justice impartially,” said Sen. Jeff Sessions (R) of Alabama at the time.
Justice Sotomayor’s response – that her “personal and professional experiences help me to listen and understand, with the law always commanding the result in every case” – was a predictable one. Merrick Garland, the former chief judge of the D.C. Circuit, said as much when Obama nominated him to the high court in March. (He has still not had a confirmation hearing scheduled a record-setting 175 days after his nomination.)
Yet the imprints of Sotomayor’s upbringing have on occasion been highly visible in her decisions. This past summer, for example, she wrote a passionate and unusually personal dissent in a case about unlawful police stops.
“It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote in June. “They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter, our justice system will continue to be anything but.”
Judges and legal experts alike claim that the judiciary, like the legislature, should reflect the community it serves. Without it, public confidence in the institution is undermined, they say, and the institution can be ineffectual.
“Diversity invites public confidence in the judicial impartiality and fairness, and amplifies our understanding of the law and justice,” wrote Cynthia Diane Stephens, a Michigan Court of Appeals judge, in an article for the Michigan Bar Journal last year.
A 2003 Marist poll in New York State ordered by a special state judiciary commission found that many registered voters believe that “poor people, some racial minorities and non-English speaking litigants receive worse treatment by judges,” and that while 71 percent of registered voters agreed that New York judges as a whole are fair and impartial, only 51 percent of African-American voters agreed.
Other critics have bemoaned the lack of experiential diversity in the judiciary – particularly in the Supreme Court, where all but one of the justices are former federal appeals court judges. (Also, all nine justices are either Catholic or Jewish.)
Past courts have been composed of former politicians, bureaucrats, and professors, but since 1953 two-thirds of high court nominations have gone to sitting judges. This homogeneity led the late Justice Antonin Scalia in one of his final dissents, to describe the court as a “select, patrician, highly unrepresentative panel of nine.” Others believe the trend has led to increasingly technical opinions out of touch with on-the-ground realities, including the 2010 Citizens United decision.
Mr. Qureshi has spent his entire legal career at Latham & Watkins, so it is unclear what his legal philosophy would be on the bench if confirmed. His expertise is in False Claims Act cases, health-care fraud, and securities violations, though he was also involved in a lawsuit in New York City last year lifting a temporary ban on Muslim posters. He is unlikely to receive a confirmation hearing before the November election.
Muslim groups praised his nomination as a means of making the judiciary more reflective of American society.
“It’s hard to say what [his appointment would] mean in any particular case, and I wouldn’t venture to guess,” wrote Professor Schwinn in a follow-up email. But his presence would “undoubtedly influence other members of the group by bringing a perspective on issues that (without the new member) the other members may not share.”
Correction: This story previously mischaracterized the court Mr. Qureshi would be appointed to.